State Consumer Disputes Redressal Commission
Smt. Sabita Pandit & Anr. vs Smt. Veena Sarkar & Anr on 26 February, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/333/2018 ( Date of Filing : 06 Apr 2018 ) (Arisen out of Order Dated 29/01/2018 in Case No. Complaint Case No. CC/350/2017 of District North 24 Parganas) 1. Smt. Sabita Pandit & Anr. W/o Sri Bhuban Pandit, 242/A, Naskarpara Road, P.O. & P.S. - Thakurpukur, Kolkata - 700 082. 2. Smt. Kamala Devi Jain W/o Sri Manik Chand Jain, 134/4, M.G. Road, P.S. - Jorasanko, Kolkata - 700 007. ...........Appellant(s) Versus 1. Smt. Veena Sarkar & Anr W/o Lt. Ashim Chandra Sarkar, Flat no.-B, 3rd Floor, Niladri Bhaban, Ghosh para Road, Ichapore Kanthadhar, P.O. Ichapur - Nawabganj, P.S. - Noapara, Dist. North 24 Pgs., Pin - 743 144,W.B. 2. Sri Goutam Brahmacharya S/o Sri Durgadas Brahmacharya, P.O. - Noapara, Dist. North 24 Pgs. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Prasanta Banerjee, Advocate For the Respondent: Mr. Debashis Malakar, Advocate Dated : 26 Feb 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Landowners (Opposite Party Nos. 1 & 2) to impeach the Judgement/Final Order dated 29.01.2018 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint No. 350/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by Respondent No.1 under Section 12 of the Act on contest against OP Nos. 1 & 2 (Appellants) and ex-parte against OP No.3 (Respondent No.2) with the following directions -
"All the OPs are jointly and severally directed to handover the Completion Certificate, sanctioned building plan, possession certificate, copy of Parcha, chain Deeds, tax receipts etc. and other documents in respect of the flat/building/land in question and any other documents which are required for the purpose of registration to the complainant within two months from the date of this order.
All the OPs are jointly and severally directed to execute and register the Deed of Conveyance in respect of the flat in question, as mentioned in the schedule of the Agreement as well as in the petition of complaint, in favour of the complainant within two months from the date of the order. The cost of registration shall be borne by OP No.3/developer.
The OPs are further jointly and severally directed to pay compensation and litigation cost of Rs.20,000/- and Rs.5,000/- respectively to the complainant within two months from the date of the order.
The OP No.3 is further directed to refund Rs.75,300/- to the complainant within two months from the date of this order, which he received in excess from the complainant, in default, the OP No.3 is directed to pay interest @9% p.a. on Rs.75,300/- which shall be calculated after two months from the date of this order till realisation.
In default of any portion of this order, the complainant may put the order under execution by filing an execution application as per the provisions of the C.P. Act, 1986 and may seek for execution and registration of the flat in question be done through the intervention of the Forum by appointing any Commissioner".
The Respondent No.1 herein being Complainant lodged the complaint before the Ld. District Forum stating that on 17.03.2004 she entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 834 sq. ft. more or less being Flat No. B on the 3rd floor in the building christened 'Niladri Bhaban' along with proportionate impartiable share of the total land lying and situated at Holding No.37(old) 37/1(new), Ghosh Para Road, Ichapur, P.S.- Noapara, Dist- North 24 Parganas within the local limits of Ward No.8 of North Barrackpore Municipality at a total consideration of Rs.6,00,480/-. The complainant has stated that she had paid Rs.6,75,780/- i.e. the excess amount of Rs.75,300/-. On payment of the aforesaid amount, the OP No.3 delivered possession of the subject flat. However, after obtaining physical possession time and again she has requested the OPs to execute the Sale Deed and to handover the Completion Certificate etc. but all the requests and persuasions including the legal notice went in vain. Hence, the respondent no.1 approached the Ld. District Forum with prayer for several reliefs, viz.- (a) a direction upon the OPs to execute and register the Sale Deed in respect of the flat in question, failing which the same may be executed through the machinery of the Commission; (b) a direction upon the OPs to provide the Photostat copies of Title Deed, Power of Attorney, Parcha, up to date tax receipts, sanctioned building plan, Completion Certificate, possession letter etc. to the complainant; (c) the OPs may be directed to return the excess amount of Rs.75,300/-; (d) compensation for harassment and mental agony; (e) cost of the proceedings etc. The Appellants being the Opposite Party Nos. 1 & 2 by filing a written version have stated that they are in no way connected with the alleged Agreement for Sale and no information regarding payment of the consideration by the complainant to OP No.3/developer and as such no liability is attributed upon them.
The Respondent No.2/Opposite Party No.3 (developer) did not appear before the Ld. District Forum to contest.
On evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the Opposite Parties, as indicated above. Challenging the said order, the OP Nos. 1 & 2 (landowners) have come up in this Commission with the present appeal.
Mr. Prasanta Banerjee, Ld. Advocate for the Appellants has submitted that the Ld. District Forum erred in law by not holding that it is the duty on the part of developer to obtain the building Completion Certificate from the competent authority and to handover an authenticate copy of the same to the buyer in order to enable him/her to mutate his/her name in the Assessment Register of the competent authority. Therefore, the Ld. District Forum has committed an error by directing the landowners also to handover a Completion Certificate to the complainant. He has also submitted that for the purpose of deficiency on the part of developer, a landowner should not suffer. The landowner did not accept any amount of money from the complainant and, therefore, the order of compensation awarded against the landowners is also not tenable.
Per contra, Mr. Debashis Malakar, Ld. Advocate for Respondent No.1 has admitted that it is the duty on the part of developer/builder to obtain Completion Certificate from the competent authority but as the landowners did not agree to execute the Sale Deed, the order of imposition of compensation should not be interfered with.
We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, the Appellants are the owners of the land over which the building christened 'Niladri Bhaban' lying and situated at Holding No.37(old) 37/1(new), Ghosh Para Road, Ichapur, P.S.- Noapara, Dist- North 24 Parganas within the local limits of Ward No.8 of North Barrackpore Municipality. For the purpose of development of the land and in order to construct the building 'Niladri Bhaban', the appellants had entered into an agreement with respondent no.2 for raising construction and empowered him to sell the flats falls within the developer's allocation.
Being emboldened with the power conferred upon him, Respondent No.2 had entered into an agreement on 17.03.2004 with the respondent no.1 to sell a self-contained flat measuring about 834 sq. ft. more or less being Flat No. B on the 3rd floor in the building christened 'Niladri Bhaban' along with proportionate impartiable share of the total land lying and situated at Holding No.37(old) 37/1(new), Ghosh Para Road, Ichapur, P.S.- Noapara, Dist- North 24 Parganas within the local limits of Ward No.8 of North Barrackpore Municipality at a total consideration of Rs.6,00,480/-. Evidently, the respondent no.1 has paid Rs.6,75,780/- i.e. the excess amount of Rs.75,300/-. On payment of the aforesaid amount, the OP No.3 delivered possession of the subject flat. However, non-execution of Deed of Conveyance and non-delivery of an authenticate copy of Completion Certificate/Occupancy Certificate prompted the respondent no.1 to approach the Ld. District Forum for redressal of her grievances.
It is well settled that after accepting the entire consideration amount as per agreement, it is bounden duty on the part of developer to fulfil the following obligations, viz. - (a) to deliver possession, (b) to execute and register the Sale Deed and (c) to obtain completion certificate/occupancy certificate from the authority concerned. Admittedly, the respondent no.2/developer by delivery of possession of the subject flat has fulfilled only one obligation and it is statutory obligation on the part of developer to execute the Sale Deed. The respondent no.2/developer has not come to ventilate that the appellants/landowners have cancelled the Power of Attorney executed in favour of him. Therefore, the Ld. District Forum should not have directed the landowners too to obtain Completion Certificate from the competent authority. Therefore, the said order is liable to be modified only to the extent that only the respondent no.2/OP No.3 should obtain the Completion Certificate from the competent authority and to handover an authenticated copy of the same to respondent no.1.
So far as imposition of compensation upon the Appellants/landowners is concerned, it appears that both the developer and the landowners jointly and severally are directed to pay compensation of Rs.20,000/-. Since, the appellants/landowners empowered the respondent no.2/OP No.3 by executing a Power of Attorney, certainly the respondent no.2/OP No.3 alone had the authority to execute the Sale Deed and to handover a copy of Completion Certificate. The appellants did not receive any amount from the respondent no.1 and they were unaware about the transaction in between the respondent no.1 and respondent no.2. Therefore, as there was no deficiency on the part of appellants, the Ld. District Forum should have no occasion to award compensation against the appellants/landowners.
In view of the above, the impugned judgement/final order is modified only to the extent that the appellants/opposite party nos. 1 & 2 (landowners) shall have no obligation to obtain Completion Certificate and to handover an authenticate copy of the same to respondent no.1/complainant or to pay compensation, as awarded by the Ld. District Forum. The other part of the order, however, is maintained.
With the above observations, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER